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The Office of the United States Trade Representative (USTR) released its annual Special 301 report on Monday, a review of other countries’ intellectual property laws and enforcement standards. The Report lists countries that are singled out for having “bad” intellectual property policies on a tiered set of “watch lists”: the Watch List and the Priority Watch List. The USTR uses the threat of placement on one of these Watch Lists to pressure other countries to adopt heightened copyright, trademark and patent laws that mirror or in some cases exceed U.S. law. By being placed on this list, the USTR hints at the possibility of trade law repercussions. Although it does not directly lead to imposition of trade sanctions (as is the case for the top Priority Country designation), being put on the watch lists or singled out for an “out of cycle” review does lead to increased scrutiny and bilateral pressure for trading partners to change their laws.

What’s particularly obnoxious about the watch lists and the annual Special 301 process is that countries are being asked to adopt very particular implementations of international legal standards and interpretations of controversial parts of U.S. law that only reflect the interests of intellectual property (IP) rightsholder industries. At the same time, they do not provide any evidence that such implementation is necessary as a matter of international law, or even good policy. For instance, countries have been listed for introducing copyright exceptions and limitations that would be permitted under international law or even U.S. law, such as fair use that facilitates the creation of user-generated content and technological innovation. This is why, outside the U.S., the annual Special 301 reports are seen as a one-sided and arbitrary mechanism the USTR uses to bully countries into enacting intellectual property laws through a vague and opaque process that directly manifests the desires of the copyright industries.

So how exactly does the USTR determine which countries deserve the Special 301 treatment? It hasn't published its criteria, but the final determinations seem to follow recommendations made every year by Big Pharma and the International Intellectual Property Alliance on behalf of their member content industries. Failure to “adequately” implement the 1996 WIPO Internet treaties (which is code for failing to adopt DMCA-style bans on bypassing digital locks) seems to feature quite regularly. This year, Canada, India, and Israel all made it on to the Priority Watch List for this reason. Similarly, failing to “adequately” address “online piracy” gets repeat mention. In previous years, countries (e.g. Chile, Israel) have been listed for trying to introduce copyright exceptions such as fair use.

For the first time in 2010, the USTR opened up the submission process to provide an opportunity for public interest advocates to file responses to private rightsholders’ interest reports. EFF and Public Knowledge submitted recommendations to address gross deficiencies in the process, including the complete lack of transparency in their standards for determining “adequate and effective [intellectual property rights] protection”.1 Moreover, we recommended that an independent external review of country data and statistics occurs to determine the true sources of “concerns” claimed in the report. The USTR has continued to accept comments and have held public hearings before the Special 301 subcommittee. However, the lack of any substantial objective assessment or increased transparency in the process, demonstrates that these have essentially made no impact on this process.

What’s so disheartening is that there’s evidence that this list is in fact effective in ratcheting up copyright laws around the world. Spain is commended in this year’s report for passing its highly controversial website shutting and blocking “Sustainable Economy” Law. As we’ve noted before (here and here) that leaked diplomatic cables published on Wikileaks show that the US pressured successive Spanish government administrations to pass the controversial law under threat of being listed on the Special 301 Watch List, and more recently, being upgraded to the Priority Watch List. Before the passage of this law, Spain had been on the pragmatic side of copyright legislation. As the legislation was getting passed, digital activists and Internet rights lawyers recognized that in practice, enforcement of the law would skirt due process, violate personal privacy, and limit free expression. The passage of the law sparked countrywide protests and even a boycott of all artists and studios that supported the legislation, but to no avail. Since Spain had met the requests of U.S. officials and IP rightsholder groups, it is not listed in either of the 2012 report’s watch list.

Mike Masnick of Techdirt has covered the publication of the Special 301 Report for several years, rightfully criticizing the ridiculously blatant demonstration of corporate influence over U.S. foreign copyright policies. He wrote about the 2011 report last year:

The really sickening part in all of this is that the USTR makes no effort to determine what sorts of IP laws are effective or reasonable. None. It just pushes other countries to ratchet up their IP laws to more and more draconian levels. Basically, if anyone thinks they have a better idea on how intellectual property laws should be done, the US government shames them with this report.

As Michael Geist noted in his blogpost on this year’s Special 301 Report, Canada already has strong copyright laws and enforcement penalties, but the USTR has continually listed Canada on the Priority Watch List to pressure it into adopting particular measures sought by US rightsholders. He says this undermines the credibility of the entire Special 301 process in the eyes of other governments. Geist made a submission with Public Knowledge to the USTR this year. It said [pdf]:

...the USTR should be guided by U.S. law in evaluating the laws of other countries. Viewed from a U.S. law perspective, Canadian copyright laws provide adequate and effective protection to US IP rights owners... Furthermore, Canadian authorities effectively enforce copyright laws. Consequently, rates of infringement in Canada are low and the markets for creative works are expanding. Placement of Canada on the Special 301 Watch List or Priority Watch List in the face of this evidence would be unjustified. It would only lead to undermining the legitimacy of the Special 301 process.

It’s not news that the USTR’s activities reflect the fact that this and previous administrations have been doing the bidding of the big content industry lobbyists for many years. The Anti-Counterfeiting Trade Agreement (ACTA), the Trans-Pacific Partnership agreement (TPP), and free trade agreements between the U.S. and dozens of countries around the world reflect the special interests and lobbying power of the Big Content and Big Pharma rightsholder industries. The Special 301 process has proven to be a durable and extremely effective mechanism for pressuring other governments to enact over-reaching copyright laws, to the detriment of citizens’ rights around the world and the US technology sector’s export markets. But in light of this year’s events, the 2012 Special Report underscores the urgent need for our foreign policy on IP to be based on fair and transparent process and an objective assessment of empirical evidence.